Is Litigation A Blight, Or Built In?

By DAPHNE EVIATAR

Published: November 23, 2002

The familiar image of manipulative lawyers and rapacious clients bringing frivolous lawsuits is almost as much a part of American lore as George Washington chopping down the cherry tree. Whether it's teenagers suing McDonald's for making them fat or a grandmother winning millions for burning herself with spilled coffee, the succession of sensational stories fuels the public's fury at a legal system apparently running amok.

But now a growing number of political scientists are arguing that America's famous litigiousness isn't rooted in plain and simple greed but is rather the logical response to America's distinctive distribution of power and to a historical distrust of big government.

The proliferation of lawsuits grows out of ''fundamental features of the American constitutional tradition,'' Thomas F. Burke, assistant professor of political science at Wellesley College, declares in a new book, ''Lawyers, Lawsuits and Legal Rights: The Battle over Litigation in American Society.''

In other words, blame the founding fathers for their deep mistrust of centralized authority and their glorified view of self-reliance. The government they structured -- with its separation of powers, its limited national control over state and local police forces and its independent judiciary -- was intended to protect against tyranny, but it also had the unintended consequence of making it harder for democratically elected leaders to get things done.

While countries like Britain, Germany, France or Sweden have a centralized government with powerful regulatory agencies to provide safeguards and with generous social welfare benefits to cushion life's blows, Professor Burke argues, the decentralized American system forces Americans to take their problems to court. So instead of national health care, he says, Americans get proposals for a ''patients' bill of rights'' that would allow the sick to sue their managed-care companies.

Professor Burke was a student of Robert A. Kagan, a political science professor at the University of California at Berkeley and the author of ''Adversarial Legalism: The American Way of Law.'' Professor Kagan argues that while the public is suspicious of government, it nonetheless ''expects and demands comprehensive governmental protections from serious harm, injustice and environmental dangers.''

This ''fundamental tension'' forces people to turn to the courts to do everything from cleaning up the environment to rooting out discrimination, or to go one step further, to warn them away from unhealthy overeating or even unexpectedly scalding coffee. Under this system of ''adversarial legalism,'' as Professor Kagan calls it, the judiciary and lawyers become a critical part of the governing process.

Both Professors Kagan and Burke rely in part on the work of the Stanford legal historian Lawrence Friedman, who in his 1985 book, ''Total Justice,'' wrote that growing wealth and technological advances were leading people to expect government to solve their problems. As Professor Kagan said recently, ''People used to say if we can put a man on the moon, we certainly ought to be able to figure out how to make a product safe.'' This quest for ''total justice'' has had the effect of creating a far greater role for courts and lawyers: because elected officials aren't sufficiently empowered to bring changes, people turn to the judiciary.

Modern tort law actually developed because the American government wasn't passing laws to protect people from the hazards of the industrial revolution, Carl T. Bogus, a law professor at Roger Williams University, explains in his book ''Why Lawsuits Are Good for America,'' published last year. The courts stepped in to mandate safety measures, some of them life saving, when the legislatures refused to.

By the middle of the 20th century, lawyers discovered that litigation could also be a tool for broad social change, filing the landmark Brown v. Board of Education in 1954. Then Congress passed the Civil Rights Act of 1964, inviting plaintiffs to sue to open up the workplace to women and minorities.

This was the era of what's known as the ''due process revolution,'' when lawyers won criminal defendants the right to counsel and welfare recipients the right to hearings. Eventually, the aged and disabled won rights that were likewise enforceable by lawsuits. Lawyers began bringing class actions, and the law seemed to be expanding into every facet of daily life. Sexual harassment law developed in the 1980's, for example, bringing the courts into the workplace.

All of this alarmed corporations and insurance companies, which began lobbying to limit their liability. By the 1990's, popular books like ''The Litigation Explosion'' by Walter Olson and ''The Death of Common Sense'' by Philip K. Howard made the threat of litigation a public cause, warning that individual greed was replacing community values.

Not everybody accepted that story, however. Academics like Mark Galanter, law professor at the University of Wisconsin, published articles debunking the claims of outrageous litigiousness and demonstrating that there weren't many more lawsuits in the 1980's than there were in the decade before. Others like Ralph Nader, the nation's most outspoken litigation supporter, defended lawsuits for their unusually democratic potential, asking: ''Where else can a person without money take on General Motors?''